The Welfare Foods (Best Start Foods) (Scotland) Amendment Regulations 2024: scrutiny report

The Scottish Commission on Social Security's scrutiny report on the draft Welfare Foods (Best Start Foods) (Scotland) Amendment Regulations 2024

1. Introduction

The Scottish Commission on Social Security (SCoSS) is pleased to present its report on the draft Welfare Foods (Best Start Foods) (Scotland) Amendment Regulations 2024 (henceforth referred to as the ‘draft Regulations’).

The context for scrutiny of the draft Regulations is, in important respects, different from previous pieces of pre-legislative scrutiny work completed by the Commission. All previous regulations on which we have reported have been made by the Scottish Government using powers conferred by the Social Security (Scotland) Act 2018.1

Best Start Foods (BSF) does not fall within any of the nine categories of social security assistance for which part 2, chapter 2 of the Act provides. Instead, it is a form of Welfare Foods payment, which falls within section 13 of the Social Security Act 1988. This means the special ‘super-affirmative’ legislative process described in section 97 of the 2018 Act does not apply to the draft Regulations, which therefore fall outside the scope of SCoSS’s pre-legislative scrutiny role under section 22(1)(a) of the Act. Instead, we have considered the draft Regulations under section 22(1)(b), which allows the Scottish Government to ask SCoSS to prepare a report on any matter relevant to social security.

The primary legislative basis for BSF is the Social Security Act 1988. This means that there is some ambiguity around the strict applicability of the social security principles. However, we will consider the alignment of the draft Regulations with the principles as normal.

The social security principles may apply to either ‘the Scottish social security system’ (principles (d) to (h)) or ‘social security’ (principles (a) to (c)). ‘The Scottish social security system’ is defined as referring to social security schemes within the ambit of the Social Security (Scotland) Act 2018 and certain other schemes created by an Act of the Scottish Parliament,3Social Security (Scotland) Act 2018 s23 neither of which applies to BSF. However, the different language employed in principles (a) to (c) suggests they might also apply to social security schemes that are not created under devolved legislation, such as those within the ambit of the Social Security Act 1988, which is the primary legislative basis for BSF.

The principle that social security is a human right (principle (b)) is specifically mentioned in the Child Right and Wellbeing impact assessment (p22). More generally, we take the view that if the principles set the required standard against which the Scottish social security system should be judged, they can fairly be regarded as desirable standards for other aspects of social security within devolved competence. According to the legislation, the Social Security Charter (‘Our Charter’), “is to set out what should be expected… from the Scottish Ministers when… developing social security policy”,4Social Security (Scotland) Act 2018 s15(2)(a)(i) while the Charter itself states that it exists to tell citizens “what you are entitled to expect from the Scottish Government and Social Security Scotland”.5Social Security Scotland, Our Charter (Dundee: Social Security Scotland, 2019) 5 At face value, this is not necessarily limited to the exercise of functions under the Act as there is a separate provision concerning the applicability of the Charter in that context.6Social Security (Scotland) Act 2018 s15(2)(a)(ii)

Reference to relevant principles, human rights provisions or Charter commitments will be made at appropriate points throughout the remainder of this report. In general terms, we can say that:

BSF represents an investment in the people (specifically the children) of Scotland during the first years of life, when access to adequate nutrition is recognised to be particularly important to longer term outcomes.7 The draft Regulations will result in a small increase to the number of children who benefit from BSF It can therefore contribute to the fulfilment of principle (a).

By reducing obstacles to take-up of BSF, the draft Regulations should make it easier for pregnant people and young children to enjoy their right to social security in practice. We note that there are additional changes that could be made to further increase the contribution to the fulfilment of principle (b), but some of these might be challenging while BSF remains outside the scope of the 2018 Act.

The draft Regulations show respect for the dignity of young parents by making it easier for them to manage their own or their child’s BSF award, in accordance with principle (d). However, stakeholders have highlighted the need for Social Security Scotland to be alive to the potential for financial abuse from a partner (also resulting in infringement of autonomy and dignity) flowing from some of the changes being made.

BSF represents a small amount of financial assistance to a relatively small pool of beneficiaries, but nonetheless makes a contribution to poverty reduction in line with principle (e). The draft Regulations are likely to result in a limited increase in the extent to which BSF protects households from poverty.

Overall, the draft Regulations appear to represent an improvement to BSF’s ability to meet the needs of low-income households, in line with principle (g). We note a possible shortcoming in the equality impact assessment’s consideration of domestic abuse, but some of the changes can be expected to promote equality on behalf of the youngest parents in Scotland and between people who receive different low-income benefits.

Changes made by the draft Regulations include a simplification of eligibility criteria (although these will remain complex), which has potential to contribute to the fulfilment of principle (h) by increasing the efficiency with which the benefit can be delivered.

To a large extent, the draft Regulations are concerned with increasing the alignment of the eligibility criteria for BSF with those for Best Start Grant (BSG). Some responses to the Scottish Government’s initial consultation on the design of BSF called for alignment of these criteria from the outset.13 Given that the three BSG payments, BSF and the Scottish Child Payment (SCP) are collectively described as the ‘five family payments’, there is a case for them to be awarded on largely the same basis. This should make it easier for individuals to understand their likely entitlements and therefore has potential to increase take-up. Some of the changes to BSF to be made by the draft Regulations will also have the effect of widening eligibility.

There are areas where SCoSS believes, and Scottish Government officials have acknowledged, that even closer alignment across the five family payments would be desirable, but this is not straightforward. The key obstacle here is that the primary legislative basis for BSF is the Social Security Act 1988, whereas that for most devolved benefits in Scotland, including SCP and BSG, is the Social Security (Scotland) Act 2018. One consequence of this is that processes around BSF can differ from other benefits, including the other family payments. If an individual disagrees with a decision on their entitlement to BSF, they can request an internal review, but there is no provision for redetermination or appeals to tribunal. Arguably, therefore, provisions for access to justice under BSF (required by various human rights provisions)14Notably article 6 of the European Convention on Human Rights; the opportunity to request redetermination or to appeal following a determination of a social security application, and to receive short term assistance in certain circumstances, is also a commitment given by the Charter (Processes that Work commitments 7, 8 and 9). are not as developed as in other Scottish benefits. Nor can awards be suspended. The different legislative basis might also partly explain the tendency for BSF regulations to use different terminology than is commonly used within the Scottish social security system. Officials have advised SCoSS that there is little scope for bringing BSF within the scope of the 2018 Act in the near future due to the pace of current developments across the Scottish social security system as a whole. Nonetheless, SCoSS believes closer alignment of processes and language should remain a longer-term aspiration.

Observation 1: In the longer term, consideration could be given to aligning both language and processes with the wider Scottish social security system.

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